Opinion
November 7, 1963
Order, entered on August 15, 1963, denying plaintiff's application for leave to increase the ad damnum clause and to serve a further bill of particulars, unanimously modified in the exercise of discretion and the motion granted to the extent of permitting plaintiff to serve a further bill of particulars, and as so modified, affirmed, without costs. We agree with the conclusion of Special Term that in the circumstances here presented plaintiff should not be permitted to increase the ad damnum clause. However, the request for leave to serve a further bill of particulars should be granted. The bill of particulars heretofore served clearly stated that the special damages therein set forth were those incurred only to the date of the bill. Thus, the plaintiff would not be foreclosed from proving special damages incurred subsequent to that bill. Accordingly, there can be no objection to permitting the plaintiff to serve a further bill setting forth such additional items of special damage. Appeal from order entered on September 10, 1963 unanimously dismissed, without costs, in view of disposition of appeal rendered herewith. No opinion.
Concur — Breitel, J.P., Rabin, Eager, Steuer and Bastow, JJ.